Mark Wellington v Nebo Service Centre
[2018] FWC 4331
•24 JULY 2018
| [2018] FWC 4331 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Wellington
v
Nebo Service Centre
(U2018/4407)
| COMMISSIONER SIMPSON | BRISBANE, 24 JULY 2018 |
Application for an unfair dismissal remedy – applicant lodged 42 days out of time – no exceptional circumstances – extension of time not granted – application dismissed
This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) by Mr Mark Wellington who alleges his employment with Nebo Service Centre was terminated unfairly.
Mr Wellington stated in his application that he commenced employment with Rainbow Bay in January 2009, until his dismissal on 24 February 2018. The 21st day after his dismissal was 17 March 2018 which was a Saturday. In accordance with section 36 of the Acts Interpretation Act 1901 given the last day that Mr Holland could have filed his application fell on a Saturday, he was entitled to file the application on the following Monday and it would still be within time. The following Monday was 19 March 2018. Mr Holland’s unfair dismissal application was lodged on 30 April 2018, and was therefore made 42 days outside the period prescribed by the Act. The application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).
The Act provides that a person who has been dismissed and applies to the Commission for it to deal with an unfair dismissal application pursuant to s.394 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.
Section 394 of the Act provides:
“Section 394 Application for unfair dismissal remedy
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Background
On 30 April 2018 the Commission received a “Form F2 – Unfair Dismissal Application” from Mr Wellington. Part 1.4 of the Application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Wellington provided a number of reasons for why his application was filed outside this time including that he has restricted ability to drive due to advanced glaucoma in his right eye, that he had to spend time finding other employment because of the need to repay bank loans, and that living alone made travelling long distances difficult.
On 5 July 2018 the parties were invited to make submissions in relation to the extension of time issue. The matter was listed for hearing on 24 July 2018 to determine whether an extension of time should be granted.
On 5 July 2018 Mr Wellington provided a brief statement in relation to the extension of time issue. The Respondent filed submissions on 19 July 2018.
At the hearing, Mr Wellington represented himself. I granted leave for Nebo Service Centre to be legally represented by Mr David Edwards of Counsel on the basis s.596(2)(b) had been satisfied.
Section 394(3)(a) – reason for the delay
Mr Wellington provided in his statement that following his dismissal he was unaware he could make an application for unfair dismissal. Mr Wellington said he had difficulty obtaining the application forms as he did not have access to a computer. He also said he lived alone 5km outside of Nebo, and had to rely on his friend to drive him. Mr Wellington said he therefore had to wait for a suitable time to be arranged with his friends’ employer.
Nebo Service Centre submitted that Mr Wellington’s close friend and co-worker Steven Eyles who was also dismissed came to Mr Wellington’s home on the Friday that Mr Eyles was dismissed and that Mr Eyles lodged his own Form 2 application shortly thereafter. Nebo Service Centre submitted it is implausible that Mr Eyles did not discuss this with Mr Wellington in the immediate aftermath of Mr Eyles dismissal.
Mr Wellington responded that he did have a conversation with Mr Eyles, however that conversation was to the effect that Mr Eyles told Mr Wellington that Mr Eyles would no longer be working for Nebo Service Centre and that it had been nice working with him and to wish Mr Wellington the best. Mr Wellington said he was unaware of his own dismissal until later he received a call from Nebo Service Centre saying he had been terminated.
I asked Mr Wellington to advise when it was he first became aware that he could make an application for unfair dismissal. Mr Wellington said it was sometime later in the day of 24 July when he was speaking to his friend Rodney Pulson who suggested Mr Wellington should do something about his dismissal.
Mr Wellington said Mr Pulson drove him to Mackay for a meeting with Legal Aid though he could not recall exactly when this occurred. Mr Wellington said he thought it might have been four weeks after his dismissal. He said he then had to wait for Legal Aid to send him the relevant forms for unfair dismissal. Mr Wellington said once he received the unfair dismissal forms from Legal Aid he sought assistance from his friend Mike, whose last name he cannot recall, to fill out the forms.
Nebo Service Centre said there was no reason why he could not take public transport to Mackay, as there are bus services that run through Nebo. Nebo Service Centre also said there was also no reason why Mr Wellington could not obtain the relevant forms from the Nebo library. Mr Wellington conceded he was aware of the library in Nebo.
Nebo Service Centre further submitted that it was unlikely Legal Aid took longer than a day to send Mr Wellington the forms, as Mackay is only some 100km away from Nebo.
I am inclined to accept the submissions of Nebo Service Centre on this point. Mr Wellington has conceded his friend Mr Pulson made him aware he could take action regarding his dismissal on the same day he was dismissed. Mr Wellington has not provided sufficient reasons why it took him four weeks before he sought legal advice. I am not inclined to accept that living 5km out of town would have prevented Mr Wellington being able to travel to the library himself and obtain the necessary forms from the library computer, or to have asked one of the staff to assist him if he had difficulties in accessing the forms himself.
I am not satisfied Mr Wellington’s reasons for the delay are sufficient to weigh in favour of granting an extension.
Section 394(3)(b) – whether the person first became aware of the dismissal after it had taken effect
Mr Wellington has accepted he was made aware of his dismissal on 24 July 2018. He said he received a call from Nebo Service Centre advising he had been dismissed for unlawful conduct. Mr Wellington also gave evidence he then received a text message later on the day of 24 July from Mr Edwards advising his employment had been terminated. This does not tend to support the case for the granting of an extension.
Section 394(3)(c) – any action taken by the person to dispute the dismissal
Nebo Service Centre submitted Mr Wellington did not take any steps to dispute the dismissal until filing his late unfair dismissal application on 30 April. Mr Wellington responded that he was initially not aware he could lodge an unfair dismissal, and due to the shock of being terminated he did not want to. Mr Wellington said he was never given any reason as to why he was dismissed.
On the evidence I am not satisfied Mr Wellington took the necessary steps to dispute his dismissal. This does not tend to support the case for the granting of an extension.
Section 394(3)(d) – prejudice to the employer
Nebo Service Centre submitted it would be prejudiced by the late filing of the unfair dismissal application because it has restructured its operations to cover the tasks carried out by Mr Wellington while working at the centre. Mr Wellington did not make any submissions on this point.
I am of the view that whilst the proceeding with the application may cause some inconvenience to the Employer, it would not be sufficient enough to weigh in favour of not granting an extension.
Section 394(3)(e) – the merits of the application
Nebo Service Centre submitted that Mr Wellington was employed and paid on a casual basis for the hours he worked. It asserted that Mr Wellington was unreliable and he and his close friend Steven Eyles were a disruptive influence at the workplace. Nebo Service Centre submitted that Mr Wellington had received several verbal warnings about his behaviour which had been ignored.
Mr Wellington said he cannot recall ever being warned in relation to alleged disruptive behaviour before he was dismissed. Mr Wellington said he was never warned about anything. He said he often worked extended hours, coming in to work half an hour early each morning unpaid.
The competing contentions give rise to factual disputes that I should not give detailed consideration to as they go to the substantive case. I am satisfied that it is appropriate to regard the consideration under s394(3)(e) as a neutral matter.
Section 394(3)(f) – fairness as between the person and other persons in a similar position
There were no submissions of any particular relevance on this point. I will consider this a neutral matter.
Conclusion
I have taken into account each of the elements of s.394(3) of the Act. This matter does not give rise to exceptional circumstances that would warrant the granting an extension of time beyond the 21 day time limit. On that basis the application for an extension of time has not been granted, and the unfair dismissal application must be dismissed.
COMMISSIONER
Appearances:
Mr M. Wellington appearing on his own behalf
Mr D. Edwards of Counsel appearing for Nebo Service Centre
Hearing details:
2018,
Brisbane:
July 24
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